This week’s top three summaries: R v Hillier, 2021 ONCA 180: #lost evidence, R v Vorontsov, 2021 ONCJ 169: 11(b) delay in #covid , and R v Malito, 2021 ONCJ 174: #mistrial for #ineffective assistance

R v Hillier, 2021 ONCA 180

[March 24, 2021] Lost Evidence: Exclusion of Evidence as Remedy [Reasons by Nordheimer J.A. with K. Feldman and M. Tulloch JJ.A. concurring]

AUTHOR’S NOTE: Police have an obligation to secure evidence that may be relevant for either the prosecution or the defence. When they seize evidence, both sorts have the same investigatory value and the police are not permitted to destroy or lose evidence that is potentially helpful to the defence even though they might consider it completely irrelevant to the Crown's case for prosecution. In this case, a factual underpinning that suggested police had messed up in one of their standard menial tasks may have been the reason why the evidence subsequently went "missing".  Police placed an arrested man in the back seat of a police vehicle, handcuffed to the rear. At the beginning of their shift, they are obligated to search that area to ensure that there is nothing there to ensure officer safety and continuity of evidence. Here, it looks like they might not have done that.  The accused was arrested with a bunch of freshly found drugs that "escaped" the officers pat down search during his arrest. Then some of the evidence related to those drugs was intentionally destroyed, such as materials that may have born fingerprints. The defence argued those drugs were in the back seat before the accused got in there. The materials would have been useful to test for fingerprints to see if there was an alternative suspect defence. But, those materials never made it to trial. 


[2] On February 21, 2019, Constable Gill of the Waterloo Regional Police Service set up surveillance in an attempt to locate the appellant and effect his arrest on a Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) warrant for driving under suspension in 2017.

[3] The appellant was observed walking up the street. He was approached by Constable Gill, who was in uniform. The appellant ran. Constable Gill gave chase. After about 100 meters, he grounded the appellant on his stomach in a pool of water. As they fell to the ground, the appellant grabbed his waistband. He refused to surrender his hands. After a struggle and numerous demands, Constable Gill gained control, cuffed the appellant to the rear, and sat him up. The appellant was sopping wet. Prior to conducting a field search, the appellant told Constable Gill he had something in his sock: 5.53 grams of what was later analyzed as a mix of fentanyl and six other substances in a prescription pill bottle.

[4] Two other officers arrived on scene – Constables Burke and Robb. Constable Burke continued the search of the appellant. Constable Burke described the search as a safety search, not an invasive search. He seized, and subsequently turned over to Constable Gill, two cell phones, two lighters, and an amount of Canadian currency. The appellant was then charged with possession of fentanyl for the purpose of trafficking. The appellant’s shoulder bag was also searched. No drugs were found therein but multiple non-functional cell phones and packs of cigarettes were located.

[7] Upon arrival at Central Division, the evidence of the officers differed on what occurred. Constable Robb testified that he opened the back door of the cruiser and observed multiple “dime bags” scattered on the floor at the feet of the appellant. Constable Burke testified that it was he who opened the door of the cruiser. In either event, after removing the appellant from the cruiser, a “bulge” was noticed in the appellant’s mouth. 1 It was later established that the bulge was a ball wrapped in plastic containing 28.18 grams of a blend of heroin, fentanyl, methamphetamine, and other substances, similar to that found in the pill bottle in the appellant’s sock.

[8] The appellant was taken to booking. Constable Robb went back to the cruiser to search the area and take an inventory of anything located. He testified that he found a black pouch on the “right rear passenger side” of the cruiser (at the footwell), with oxycodone pills, which were observed to be “water-damaged and mushy”, as a result of the pouch being water damaged.

[9] Constable Robb also found:

a. A gold pill container filled with suspected hydromorphone (tested as oxycodone) in the black pouch.

b. A vial of suspected cocaine (later tested as methamphetamine).

c. The ball of suspected heroin (later tested as heroin/fentanyl/methamphetamine) initially located in the appellant’s mouth.

d. Methamphetamine on the rear driver’s side seat (spilled across the seat and in the footwell on the driver’s side) and in the rear passenger side footwell.

e. A bag with multiple dime baggies inside, 69 unused baggies in the black pouch, and multiple baggies with residue, found both in the black pouch and loose in the cruiser.

[10] The two officers also gave differing evidence regarding their inspection of the cruiser, prior to commencing their shift. Constable Robb testified that an inspection of the cruiser, including the rear footwell, was completed at the beginning of his shift by both himself and Constable Burke, and that no flashlight was used. Constable Robb also said that, just before the appellant entered the cruiser, he examined the footwell to make sure it was free of contraband. Constable Burke testified that his practice is to crouch down to check the footwell in his vehicle inspection, including using a flashlight. He did not note that he conducted this specific check on that day, but he testified that he always conducts the check in the same way. Constable Burke could not recall if Constable Robb assisted with or conducted checks of the cruiser that day. Constable Burke also testified that, as a matter of redundancy, he examines the space again before anyone is placed in the rear. He noted “as the doors open, I look in to make sure nothing is there and then ask the person to get in”. Both officers testified that the appellant was the first person in the rear of the cruiser that day.

[11] ... No photos were taken of the items before they were seized from the cruiser.

[12] The substances seized were weighed and tested: 5.53 grams of heroin/fentanyl/methamphetamine mixed with other substances was seized from the person of the appellant upon arrest. The following were seized from the police cruiser: 9.96 grams of methamphetamine, 28.18 grams of heroin/fentanyl/methamphetamine mixed with other substances, 1.46 grams of methamphetamine, and 12.9 grams of oxycodone pills (damp).

[13] Constable Atchison made the decision to destroy a number of items of evidence during processing:

a. Coins ($9.70 Canadian currency), because he believed them to be “covered in a substance that [he] knew was an illicit substance.”

b. The “purse” containing the coins, which he indicated was an “oversight on [his] part.”

c. All of the drug packaging, which was not described with any specificity in the officer’s notes or in viva voce evidence.

d. A vial of suspected cannabis oil, which was not sent to Health Canada for testing.

According to Constable Atchison, these items were discarded because they were a biohazard. Constable Atchison also testified he did not see the significance in keeping them.

[14] None of the seized items were tested for fingerprints, nor were identification photos taken before the items were destroyed. Constable Gill would have been responsible for this decision, but could provide “no reason”, stating “I just didn’t do it”. Photos were not taken of the remaining exhibits until requested by the Crown shortly before trial.

[15] The appellant testified in his own defence. He said that he was an addict, at the time, suffering from heroin and fentanyl addiction, having used for a month and a half straight at the time of his arrest. He indicated that, at the time, he was using “maybe a quarter of a gram a day”, and that he would purchase enough to last for two weeks, approximately 4 to 5 grams.

[19] The appellant testified that he was leaning forward when sitting in the cruiser because it relieved pressure on an injured shoulder. He testified that when leaning forward, he could see something shiny in the space at his feet. He kicked it with his foot, and he found a bag. He was able to reach it, pick it up, and unzip it. When he did, certain items fell out. There was a white ball wrapped in white plastic. He concealed it in his mouth because he was scared to be caught with it. He testified that “I don't even know what's in the rest of the bag and I thought well, now, this is going to get pinned on me, whatever, I just – I don't know.” He indicated in crossexamination “[i]f I had knowledge that that was an ounce of fentanyl, I would not have put that in my mouth. I’m better off putting a gun in my mouth and pulling the trigger when I know there’s four bullets and pull it four times.”

[20] The appellant described the bag that he found as black cloth, six to eight inches wide, by three inches high. He testified that it was in a puddle of water at his feet and was wet. He said that he opened it out of curiosity or “stupidity”, and said, “I don’t know. Maybe I should have just kicked it back under the seat”.

[The Trial Judge rejected the lost evidence arguments.]


[27] In my view, the trial judge erred in dismissing the appellant’s application regarding the destruction of the evidence. The law on this issue is set out in the Supreme Court of Canada’s decision in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, where, in discussing the consequences where evidence is lost, Sopinka J. said, at para. 20:

This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.  Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

[28] When evidence is lost, the Crown must explain how the evidence was lost. When considering the Crown’s explanation, Sopinka J. said, at para. 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable.  But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[29] In this case, the police did not take reasonable steps to preserve the evidence. To the contrary, the police purposely destroyed the evidence and did so without taking any photographs of it. The officer who destroyed the evidence said that he did so because “[he] just didn’t see the significance in keeping them”. But the officer then fairly added, “If I could do it again, I would have kept the brown purse”.

[30] The fact that the officer considered the items to be a biohazard did not justify their destruction. The police routinely handle all sorts of items that could be considered biohazards, but that fact does not justify their destruction. Drugs themselves are biohazards, but they must be retained in order to prove the offences charged. Indeed, the officer acknowledged that these items could have been saved until the court proceedings concluded.

[31] The trial judge did not properly analyze the significance of the items that were destroyed to the majority of the offences charged. How the drugs came to be in the backseat of the cruiser was a critical factual issue and the fabric pouch was central to its resolution. It is important on this point to realize that the three officers involved with the fabric pouch, all gave different descriptions of it:

  • Constable Robb described it as a black pouch, similar in size to a “fanny pack”, but could not recall how it opened, from where it opened, or how it fastened.
  • Constable Burke described it as a small, black change purse, made out of a “felt-type material”, “being what you would remember your grandmother to have in her purse that would keep her…grocery money in”, with a clasp opening at the top, and just large enough to fit some change and a small amount of cash inside. He estimated its dimensions as three inches long by three inches tall and three quarters of an inch thick.
  • Constable Atchison described it as “sort of being brown and sort of the size of a female’s clutch purse…maybe eight inches sort of in a rectangular shape”, though he did not recall the way it opened, and he inferred that it was cloth.

[32] It must be kept in mind, on this issue, that this pouch is the apparent source of the drugs, and other items, found in the back seat of the cruiser and in the appellant’s mouth. It must also be kept in mind that the appellant was thoroughly searched at the scene of his arrest, such that a number of items were found including drugs, currency, and other items. It must be further kept in mind that the appellant was handcuffed to the rear from the time of his arrest until after he arrived at Central Division and was removed from the cruiser.

[33] In these circumstances, it is problematic how an item, like this fabric pouch, could have been on the appellant’s person and yet not be found in the course of the search of the appellant. Indeed, it is hard to see how an item, described by at least one of the officers as being like a “fanny pack”, could have been missed in such a search, especially when one considers what the appellant was wearing at the time: fitted jeans, a skin-tight shirt, a loose-fitting button-up shirt over top, and a small nylon jacket. It is also difficult to understand how the appellant could have retrieved this item from where it was apparently so well-hidden on his person, given he was handcuffed to the rear throughout his time in the cruiser.

[34] In order for the trial judge to properly consider the evidence on the issue of the drugs found in the rear of the cruiser, it cannot be refuted that being able to look at the fabric pouch would be of singular significance, especially in light of the differing descriptions given by the officers of the pouch. If the physical size of the pouch would lead to a conclusion that it could not realistically have been missed in a search of the appellant’s person, then that fact would have to pose a serious question whether the pouch was actually in the possession of the appellant. It could certainly raise a reasonable doubt regarding that fact.

[35] Coupled with that reality is the additional fact that the officers involved gave differing accounts of how and when the cruiser was searched prior to the appellant’s involvement. The two officers did not agree on who did the search or how it was done. Indeed, these same two officers could not even agree on who drove the cruiser on the day in question.

[37] While it is of less importance to this issue, I would add that the trial judge ought not to have taken what appears to be judicial notice, from his own experiences, of the likelihood of finding fingerprints on the items of concern. If the Crown wished to advance this argument, in an effort to lessen the significance of the destroyed evidence, it ought to have called proper expert evidence on the subject. It was not open to the trial judge to fill in that evidentiary gap from his own experiences – evidence, I note, that counsel did not have any opportunity to challenge: see R. v. J.M., 2021 ONCA 150, at paras. 48-56.

[38] The respondent’s effort to characterize the evidence as insignificant, and the actions of the officers as reasonable, is contradicted by the facts. Constable Atchison himself acknowledged, in hindsight, that the evidence ought to have been retained. In addition, the trial judge’s acceptance of Constable Atchison’s view at the time, that the items were not of significant relevance, is not the proper test to be applied. It is not the officer’s personal view of the evidence that counts. As Doherty J.A. said in R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 32:

It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the [undercover officer] could operate under the belief that he need save only relevant material that he viewed as significant. [Emphasis added].

[39] In my view, the destruction of these items was the result of unacceptable negligence on the part of the police. Their destruction impaired the right of the appellant to make full answer and defence, resulting in a breach of the appellant’s rights under ss. 7 and 11(d) of the Charter.


[41] I cannot conclude that this case is one of those rare and clear cases where a stay is appropriate. In fairness, the appellant does not press for that remedy. Rather, I consider the appropriate remedy, arising from the ss. 7 and 11(d) breaches, is to exclude the evidence found in the cruiser pursuant to s. 24(2) of the Charter.

[42] Applying the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I consider the destruction of this evidence to constitute a very serious infringement of the Crown’s disclosure obligations. Indeed, it is difficult to understand how, in 2019, such a casual approach could be taken to the items that were destroyed, in light of their disclosure value. I also consider that the destruction of these items had a significant impact on the right of the appellant to make full answer and defence. In terms of responding to the charges arising from the items found in the back seat of the cruiser, the appellant was left with only his evidence on what happened. Access to the fabric pouch might have lent considerable support to what he says happened, or at least raised a doubt regarding it. Lastly, I accept that the exclusion of the evidence undercuts society's interest in the adjudication of the case on its merits but, when the first two factors strongly favour exclusion of the evidence, the third factor will rarely alter the balance in favour of admission: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.

[43] Given that exclusion, the convictions on counts 2, 4 and 5 must be set aside. As there is no other evidence in relation to those charges, acquittals must be entered.

[45] There is, however, a separate issue with respect to the drugs found on the appellant at the time of his arrest (count 1). The appellant did not dispute that he had possession of those drugs, but he contended that they were for personal use and not for the purpose of trafficking. The trial judge never resolved that issue, presumably as everyone became focussed on the issues respecting the drugs in the cruiser, which were admitted to be in quantities consistent with possession for the purpose of trafficking. Nevertheless, a finding on that issue is necessary in order to prove one of the essential elements of count 1, possession for the purpose of trafficking. Further, not only was there no express finding by the trial judge on this element, the Crown did not lead evidence on the point.

[46] In those circumstances, the conviction on count 1 must also be set aside. In its place, as the appellant requested, a conviction for simple possession is substituted.

R v Vorontsov, 2021 ONCJ 169

[March 23, 2021] Charter 11(b) - Covid-19 Delay Exceptional Circumstance [Justice P.H. Marjoh Agro]

AUTHOR’S NOTE: The Covid-19 pandemic, in terms of 11(b) delay concerns, would seem to have been tailor-made to be an exception to the strict limits of 18 and 30 month presumptive limits on the length of time a matter can permitted to take until the conclusion of a trial. Perhaps that is why prosecutors grew lax during the mass adjournment phase of the pandemic as all out-of-custody trials across the country were adjourned irrespective of how long they had already been in the system. This matter shows that there is a price to pay for this lax approach. Herein, a stay of proceedings occurred despite the adjournment being caused by the Covid-19 pandemic.  The pandemic did not relieve prosecutors of the obligation of trying to ameliorate the delay caused by the exceptional circumstance of the pandemic. Consequently, the clock started to tick again soon after the automatic adjournments were over. 


1 On 18 November 2018, the applicant Vorontsov was charged with and arrested for a sexual assault contrary to section 271 of the Criminal Code. The information was sworn 29 November 2018.

2 A one day trial was scheduled on 15 August 2019 when the applicant elected trial in this court. The trial was scheduled for 8 May 2020, 17 months and 10 days from the date the information was sworn, but nonetheless within bounds for trials in the Ontario Court of Justice: R v Jordan , 2016 SCC 27, at para. [sic]

3 With the interruption of normal court business due to the onset of the COVID-19 pandemic, that trial was rescheduled for 25 March 2021, 27 months and 26 days from the date the information was sworn.

4 The applicant now seeks a stay of proceedings against him on the basis that his s. 11(b) Charter rights have been infringed.

Net Delay

33 I find the net delay after deduction for defence caused delay to be 26 months and 20 days.

34 The delay therefore is presumptively unreasonable.

Discrete Event: Covid-10 Public Health Crisis

36 The unprecedented worldwide COVID-19 pandemic is undoubtedly a discrete event as provided for, but not likely contemplated, by the Supreme Court of Canada in Jordan.

37 The Crown, relying on R v Simmons[8], and other decisions made thereafter by several trial courts, urges me to ascribe all of the time, from the adjournment of the May 2020 trial to the new trial date of 25 March 2021, as delay attributable to this discrete event.

38 If the Crown submission is acceded to by this court, the discrete event would account for 10 months 18 days, for a total delay of 16 months and two days, saving this trial from the remedy of stay.

39 The applicant submits that the proper allocation for “COVID delay” is from the date of the original trial in May of 2020 to the “reopening” of courts in July 2020 resulting in a total delay of 25 months and some days, or alternatively 31 August 2020 when out of custody trials were being reset, for a total delay of 23 months, 20 days.   Either of those calculations would invite a stay.

•      The Simmons analysis

40In Simmons, at paras. 65 & 65, Nakatsuru, J. acknowledged that that one needs to be cautious about what period of the discrete event delay should be deducted, citing Moldaver, J. in Jordan:

64  In analyzing this issue, I must be careful about exactly what period of delay should be deducted from the net delay. In Jordan, Moldaver J. acknowledged that there are limits to what delay can be justified by a discrete event. He said

at para. 75:

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

65  This obligation is consistent with the more general requirement that exceptional circumstances exist only where the Crown cannot reasonably remedy the delay from the circumstances when they arise.

41 Thereafter Nakatsuru, J. discusses five reasons why he held that the entire time, from the date of Simmons’ first trial to the end of the newly scheduled trial date should qualify as a discrete event deduction[9].

42 In summary those reasons are:

•  other trial court decisions have deducted the entire time impacted by COVID-19

•  the pandemic had system wide impacts upon how the criminal justice system does things and those who do them

•  the impact of an exceptional circumstance does not end on any specified date given the reality of trial rescheduling and that reality of trial scheduling must be taken into account when calculating the appropriate time period and “in assessing what the Crown and the Court can reasonably do in mitigating the delay”  [italics mine]

•  the discrete event of the pandemic continues into the future[10]

•  courts should be reluctant to cast blame or be overly critical of the justice system or its participants while meeting the challenges posed by the ongoing pandemic.

43 Simmons, and other authorities cited by both counsel, is a trial level decision and not binding upon me.  It reflects considerations specific to the Superior Court of Justice, and in particular the scheduling of jury trials.

44 To apply the Simmons reasoning without reference to, or further analysis of, the circumstances prevailing in this jurisdiction since the initial province wide lockdown of 16 March 2021 would fail to pay respect to the contextual analysis mandated by Jordan.

Covid Delay in this Case

46 As set out in paragraph 22, supra, the court, its administrative staff and judicial officers, all part of an essential service, continued operations, albeit on a restricted basis, to ensure the health and safety of those participants and members of the public.

47 For Phase 1 courthouses, of which Hamilton was one, trials and preliminary hearings, scheduled to begin after 6 July 2020 were to proceed on their scheduled dates.

48 Out of custody trials scheduled between 16 March 20 & 6 July 20, were to follow a regime of presumptive adjournments, with the earliest possible date for arranging a new trial date being 31 August 2020, and in any case, only after a mandatory “COVID” judicial pre-trial. The purpose of the COVD pre-trial being to discuss amongst other things, possible resolution, admissions and any other steps that might be taken to promote the proper use of hearing time.

55 In Jordan, the court considered the obligation of the Crown in exceptional circumstances at para. 70:

70  It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay.

and at para. 75:

75  The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate [page666] the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

56 In view of that direction from the Supreme Court, it was incumbent on the Crown, knowing its inventory of trials, to lay the ground for the mitigation of delay once the original trial date was first presumptively adjourned.

57 While I acknowledge that a new trial date could not be set before 31 August 2020, I have no evidence before me that this matter had been red flagged for priority by the Crown as being in Jordan territory or that the Crown sought direction from a case management judge or raised the issue with the trial coordinator before that date.

58 Indeed the Crown did not so until 11 February 2021, over 2 months after the July 2021 date was obtained.

58 [sic] This is a jurisdiction of 7 full time jurists.  By September 2020 Hamilton was operating with a full complement of judges available with 5 courtrooms for either in person or remote trials and two plea courts on any given day.  We have also had the benefit of assistance from a number per diem judges to ensure all of our available courtrooms are in operation at all times.

59 Certainly it would not be expected that all matters adjourned after 16 March be given new trial dates on 31 August 2020, but giving this trial some priority might have considerably shortened the overall delay.  This is not a complex matter.  It is a one day trial.

60 As stated in Jordan, the Crown need not satisfy me that any steps taken were ultimately successful, “rather, just that it took reasonable steps in an attempt to avoid the delay”. [italics mine][11]

61 On my review of the circumstances in this jurisdiction and of this case, I find that appropriate deduction for the exceptional circumstance of COVID-19 is limited to the period from the date of the original trial, 8 May 2020 to 18 November 2020 when the mandatory COVID judicial pre-trial as set by the trial coordinator was completed.  That results in a further deduction of 6 months and 11 days.

62 The total net delay, at 20 months and 9 days, is then presumptively unreasonable.


70 The proceedings against the applicant are stayed.

R v Malito, 2021 ONCJ 174

[March 26, 2021] Ineffective Assistance of Counsel - Mistrial Application [Justice H. Borenstein]

AUTHOR’S NOTE: This is an unusual case for three reasons. First, mistrial applications for ineffective assistance have to be made by the lawyer or the accused. Consequently, a change of counsel is necessary for this to happen before the trial proceedings end. Second, the trial judge did not finish the trial because of retirement causing another judge to come in to assess the record of the case. Third, the result was a mistrial - this is a difficult ruling to obtain in most circumstances. Perhaps the second and third reasons for this being an unusually good case for the defence are related. Many judges, being forced to review something that happened before themselves, take this sort of application personally. In essence, defence is saying the trial was unfair or unjust and the judge didn't notice. Many judges respond with a "defence" of the process that led to their rulings. The law actually does not require a judge to determine that they would have done something different had counsel been effective.  Such a hypothetical standard would be impossible to meet. The actual test is admirably applied in this decision.


[1] This is a Ruling on a mistrial, initiated by me, prior to the imposition of sentence.

[2] Mr. Malito is 55 years old. He has no criminal record. He has a history of epileptic seizures. He has a paranoid personality disorder; a history of some anger; and suffers from PTSD. He has no history of acting violently.

[3] Mr. Malito lived in an apartment building. The complainant, Mr. Kennedy, was moving into the apartment next to Malito’s. Malito found the move noisy a nd disturbing. Malito confronted Mr. Kennedy, telling him he was being too noisy, to no avail. Malito also called the superintendent and police; also to no avail. A short time later, Malito is alleged to have come out of his apartment with a hammer or meta l bar and, without warning, struck Mr. Kennedy in the face causing severe damage.

[4] Mr. Malito was found guilty of aggravated assault by Justice Wolski, who retired before sentencing.

[5] Pursuant to s. 669.2(2), I am continuing this case. I am to “impose the punishment or make the order that is authorized by law in the circumstances”.

[6] Justice Wolski would have been authorized by law to declare a mistrial if he thought it advisable.

[7] A mistrial is an extraordinary remedy – which should only be granted in the clearest of cases to prevent a miscarriage of justice.

[8] In 2014, the Ontario Court of Appeal wrote in the decision of AG:

[A] mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. Before granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies.

[9] In R. v. Truscott (2007), 2007 ONCA 575 (CanLII), 225 CCC (3d) 321 (Ont CA), a unanimous five-member panel of the Ontario Court of Appeal held that the power to overturn a conviction founded in a miscarriage of justice, “…can reach virtually any kind of error that renders the trial unfair in a procedural or substantive way.” (para 10)

[10] In my view, a miscarriage of justice would occur where a trial is fundamentally unfair.

[11] A trial would be unfair where the accused’s very defence was presented in such a manner that it was guaranteed to fail based on a misunderstanding by counsel of what was required in law for the defence to possibly succeed.

[12] Mr. Malito’s position has always been that he suffered an epileptic seizure and acted involuntarily during this attack and has no memory of the attack.

[13] I make no comment about whether that defence is true or not. But that was his position all along.

[19] He has a documented history of seizures and there is corroboration of a seizure earlier that day.

An expert is required to establish automatism

[20] Seizures have been found to cause involuntary actions resulting in automatism. However, this defence must be established on a balance of probabilities and must be supported by a qualified expert.

[21] The Court of Appeal in R. v. S.H. (2014 – OCA) made this clear.  In S.H., the 60-year-old accused was alleged to have sexually assaulted two neighbours. He had no record. His testified that he had no memory of the attack due to a seizure but had no reason to disbelieve the two complainants. He called a neurologist who testified about the seizures and their relationship to the voluntariness of S.H.’s actions. The Crown called a neuropathologist who testified that S.H.’s actions were voluntary.

[22] The trial judge was satisfied the accused had no memory of the attack, had suffered a seizure connected to the crime and that his actions were involuntary. The trial judge noted the Supreme Court of Canada’s earlier decision in Stone which held that a defence of automatism had to be supported by an expert psychiatrist but, held that, since the issue before him was involuntariness caused by a seizure, as opposed to a mental disorder, the evidence of an expert neurologist rather than a psychiatrist could confirm involuntariness. As a result, he concluded that S.H. was in a state of automatism not caused by a mental disorder.

[23] The Court of Appeal overturned the finding due to errors concerning certain presumptions relating to mental versus non-mental disorder but reiterated that an expert is required to support the defence of automatism and that it must be established on a balance of probabilities.

[24] Despite this requirement, the defence presented Malito’s defence without an expert.

[28] At the sentencing hearing, defence counsel indicated that he believed (and possibly still does) that he only had to raise a reasonable doubt about automatism. He did not know that an expert was legally required for the defence to succeed. He said they wanted an expert but could not afford one and did not believe one was required. He says he was clear, and the transcript reflects, that was not calling an expert. He submits that if the law was clear that an expert is required, then the Crown and Judge should have told him so.

[29] In my view, counsel’s fundamental misunderstanding about what was legally required to present Malito’s defence deprived Malito of having his defence properly presented or considered. That single error was so fundamental that it deprived Malito of effective assistance of counsel.

[30] Before turning to the impact of my finding of ineffective assistance, I have considered whether counsel’s failure to appreciate the need to call a properly qualified expert was cured by Dr. Patel’s evidence.

[34] The difficulty in this case is that Dr. Patel and his team were not neurologists, which was the relevant discipline at issue here. The defence position was that Malito’s seizure was caused by epilepsy, which is a neurological condition. This was not about a mental disorder.

[40] Justice Wolski asked Patel if epilepsy is a disease of the mind found in the DSM (The Diagnostic and Statistical Manual of Mental Disorders). It is not.

[42] Accordingly, it is my view that the failure to appreciate or call a qualified expert was not cured by the evidence of Dr. Patel.

Submissions at Trial

[47] Justice Wolski took a brief recess and returned with very short reasons for judgment. After reviewing the basic allegations and the lack of support for NCR, he turned to the only issue litigated at this hearing, namely, automatism; and held:

He raised the defence of automatism.  He called no expert opinion from any psychiatrists.  The Crown did call a psychiatrist. Mr. Malito’s evidence was that because he could not remember he assumed he had a seizure. The evidence filed as an exhibit through the team overseen by Dr. Patel, an eminent expert, indicates that they found no evidence of automatism.  He also, in his testimony, indicated that epilepsy is a neurological disorder, not a mental disorder, or as was known in the older days, a disease of the mind. In the absence of evidence that would support a conclusion not only in the medical world but also in the legal world because section 16 is a combination of medicine and law, the Supreme Court of Canada in the case of R. v. Stone it is dictate the nature of the evidence that is necessary to persuade a Court on the balance of probabilities, that the person was in a state of automatism. The cross-examination by counsel for Mr. Malito of Dr. Patel was, well, you can’t rule out the possibility, and I am paraphrasing here, of course, that he had another seizure. “Of course, anything is possible”, said the doctor, which is true. But possibility and balance of probabilities are two different burdens.  I find on the evidence that the only conclusion I can draw on a balance of probabilities is that Mr. Malito was in his right state of mind, he was not in any way in a seizure.

It would be contrary to his history to be violent if he was in a seizure.  It is also contrary to the medical opinion of the team put together by Dr. Patel.  What they did find was indicia of low threshold anger in mundane sort of situations and perhaps a series of volatility as a result, as well as stated dislike for most human beings. It is not his disposition from which I am going to find him guilty, but the circumstances of the facts of the case as indicated in the evidence detailing the events of April 13, 2018 together with the comprehensive report of Dr. Patel.  The accused has fallen short of the burden to prove that he is not criminally responsible as a result of a mental disorder, there being a complete paucity of evidence that epilepsy and a series of partial complex seizures could cause automatism.  It is not a disease of the mind or a mental disorder. I find the accused guilty of the offence as charged and reject his defence of not criminally responsible.

[48] The impact of the failure to call an expert was clear. It resulted in the Crown and Court being able to dispose of the defence summarily.

[49] In the 2017 Court of Appeal decision in R. v. Stark, (2017) ONCA 148, the Court wrote:

Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be established in one of two ways. The first is to show that incompetent representation undermines the reliability of the verdict. The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding. Most allegations of ineffective assistance of counsel take the first route, and involve claims that discrete instances of counsel’s incompetence worked to render the verdict unreliable. To succeed on this basis the appellant must demonstrate a reasonable possibility that, but for the incompetence, the verdict could have been different.  That is the prejudice to be established. Examples from the cases include counsel’s failure to object to inadmissible evidence, the failure to call material witnesses, the lack of preparation for trial, failure to carefully review Crown disclosure, the failure to prepare the accused to testify, and the failure to cross-examine effectively, or at all.(Paras 14-15.)

[50] In my view, the test for a mistrial has been met. This is one of the clearest of cases. It is exceptional. The failure of the defence to appreciate the need to call the evidence legally required for the defence being advanced, based on a fundamental misunderstanding of the law, deprived Malito of effective representation. It rendered the trial unfair and caused a miscarriage of justice. The Crown is seeking a sentence of almost five years in jail. I will not sentence Malito to custody where I believe there has been a miscarriage of justice, wait for him to launch an appeal to correct the problem.

[51] I have considered whether a lesser remedy than a mistrial is available – such as, allow the defence to now call an expert. I have concluded that is not available. Justice Wolski heard all the witnesses.